JTD v PDL (No 4)[2023] QDC 12

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 20 January 2023 I made orders and gave reasons in the defendant’s application to disallow some of the plaintiff’s amendments to the pleadings.^[1] The result was that the defendant succeeded in two of her four challenges to the amendments. I indicated I would hear the parties as to the costs of the application. Both parties were content for the matter to be decided on written submissions without oral hearing. To that end the defendant filed written submissions on 25 January 2023 and the plaintiff did the same on 31 January 2023. The defendant seeks an order that the plaintiff pay at least 50% of her costs of the application and asks that those costs be fixed. The plaintiff submits that the appropriate order is to make the costs of the application the parties’ costs in the proceeding.
2. [2]
   To assess the parties’ respective positions, it is necessary to say a little more about the application. The proceeding is for defamation and was commenced by claim. In his statement of claim, the plaintiff identified five alleged defamatory publications. The statement of claim has been through several iterations. In issue in this application was the third further amended statement of claim. The defendant challenged amendments to the pleadings concerning the second, third, fourth and fifth alleged defamatory publications. Each was said by the defendant to have introduced a new cause of action in circumstances where that cause of action was time-barred by the Limitations of Actions Act 1974 (Qld). I concluded that the amendments to the pleadings concerning the second and third alleged defamatory publications did introduce new causes of actions and should be disallowed. I was not so persuaded in relation to the amendments to the to the fourth and fifth publications.
3. [3]
   In coming to this conclusion, I indicated that the changes to the substance and detail of the second and third publications were significant. I also observed in relation to the fifth alleged publication that the earlier pleading of this cause of action was vague, but I was unable to conclude the amended pleading introduced a new cause of action. Thus, while the defendant succeeded only in relation to two of the four alleged publications, her argument in respect of the fifth publication was not without merit.
4. [4]
   There is a broad discretion to award the costs of an application.^[2] Where, as here, a party has been partially successful the usual notion that costs ‘follow the event’ may require a finer consideration. The relative success of the parties may be a relevant consideration in deciding whether a party should only have a portion of their costs.
5. [5]
   Turning to the parties’ submissions, the plaintiff’s submission that the costs should be costs in the cause should not be accepted. That could have the effect of the plaintiff recovering all his costs of the application, and the defendant none of hers, in the event that he succeeds on his claim. Considering the relative success of the defendant in this application, it is difficult to see how this would be an appropriate outcome. It may be seen that the defendant’s application was necessary to protect her interest in not being sued on a cause of action that was time-barred. That she succeeded only in relation to some of the amendments does not reduce the importance of the application. An order that could see the plaintiff recover the costs of this application would not be a just outcome. The plaintiff’s reliance upon section 40 of the Defamation Act 2005 (Qld) is also a little difficult to understand. It is true this provision requires a court, when deciding costs, to have regard to the way the parties conducted their cases. But the plaintiff makes no submission about the conduct of the defendant in bringing this application or why that should result in the costs order he seeks.
6. [6]
   The defendant’s primary submission is that she should have all her costs of the application. She contends that in circumstances where the plaintiff had made five attempts to plead his case, she had no option but to apply to court to ensure the pleadings complied with the rules. She submits that while some of the amendments survived her challenge, the effect of the application was to expose defective pleadings and have the plaintiff confront how his case was pleaded.
7. [7]
   Broadly speaking, the defendant is correct. However, the defendant’s approach masks the reality that I have found the amendments to the fourth and fifth publications to be within the bounds of the rules. While the pleadings about the fifth publication might be at the margins of permissible pleading, no such difficulty confronted the fourth alleged publication. This is a case where the fact the defendant was only partially successful is influential in deciding what costs orders should be made.
8. [8]
   In my view, the appropriate outcome would see the defendant recover about half of her costs of the application. This raises the question of whether those costs should be assessed, as would be the ordinary case under the rules, or fixed as the defendant seeks. The defendant has provided evidence of her costs in an affidavit provided at the same time as her submissions. The plaintiff has had an opportunity to consider and respond to the defendant’s evidence and submissions. There is merit in making an order for fixed costs. It spares the parties’ the expense of assessment and avoids the possibility of future dispute about that process. Given these considerations, fixing costs is often done on a broad basis and with some discounting. The method proposed by the defendant of discounting her actual costs by 30% seems appropriate.
9. [9]
   On the evidence, the defendant’s costs of the application are about $19,000. Applying (roughly) a 30% discount results in $13,000. On the basis that the defendant should recover half of her costs of the application, I order that the plaintiff pay the defendant’s costs of the application filed on 15 July 2022 in the fixed amount of $6,500.